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Smith, Belinda --- "Not the Baby and the Bathwater: Regulatory Reform for Equality Laws to Address Work-Family Conflict" [2006] SydLawRw 30; (2006) 28(4) Sydney Law Review 689

* Lecturer in Law, University of Sydney.

[1] Examples of the extensive scholarship on how work-family conflict reflects an unencumbered ideal worker include: Rhona Rapoport, Bailyn Lotte, Joyce K Fletcher & Bettye H Pruitt, Beyond Work: Family Balance, Advancing Gender Equity and Workplace Performance (2002); Joan Williams, Unbending Gender: Why Family and Work Conflict and What to Do About It(2000).

[2] See, for example Rapoport et al, above n1.

[3] Ibid.

[4] Ibid.

[5] See Part 2B ‘Corporate Responses to Work-Family Conflict’, below.

[6] See Part 2B ‘Corporate Responses to Work-Family Conflict’, below.

[7] As Strachan and Burgess point out, a broad categorisation of family-friendly arrangements would include ‘income security’ and ‘employment security’, because employment that provides insufficient income to support a family will ‘put pressure on family living standards and family structures’ and ‘insecure employment reduces the opportunity for planning and financial commitment, and may often be associated with benefit exclusion’: Glenda Strachan & John Burgess, ‘The “Family Friendly” Workplace: Origins, Meaning and Application at Australian Workplaces’ (1998) 19 Int J Manpower 250 at 251.

[8] Lotte Bailyn, Breaking the Mold: Women, Men, and Time in the New Corporate World (1993) at xii. See also Rapoport et al, above n1.

[9] For example, Ian Ayres & John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (1992); Christine Parker, The Open Corporation: Effective Self-Regulation and Democracy (2002) at ch 1.

[10] See, for example Ayres & Braithwaite, above n9; Brent Fisse & John Braithwaite, Corporations, Crime and Accountability (1993); Susan Sturm, ‘Second Generation Employment Discrimination: A Structural Approach’ (2001) 101 Colum L Rev 458; Michael C Dorf & Charles F Sabel, ‘A Constitution of Democratic Experimentalism’ (1998) 98(2) Colum L Rev 267; Hugh Collins, Paul Davies & Roger Rideout (eds), Legal Regulation of the Employment Relation (2000); Chris Arup, ‘Labour law as Regulation: Promise and Pitfalls’ (2001) 14 AJLL 229; Parker, Open Corporation, above n9; John Braithwaite, Nicola Lacey, Christine Parker & Colin Scott (eds), Regulating Law (2004); Susan Sturm ‘The Architecture of Inclusion: Advancing Workplace Equity in Higher Education’ (2006) 29 Harvard Journal of Law and Gender 247.

[11] See Part 2C ‘Legal Interventions’, below.

[12] The Workplace Relations (Work Choices) Act 2005 (Cth) amended the Workplace Relations Act 1996 (Cth) (WRA). These amendments, which came into effect in March 2006, constitute a very substantial overhaul of Australian industrial relations.

[13] For an excellent regulatory analysis of the Work Choices changes see Sean Cooney, John Howe & Jill Murray, ‘Time and Money under WorkChoices: Understanding the New Workplace Relations Act as a Scheme of Regulation’ [2006] UNSWLawJl 12; (2006) 29 UNSWLJ 215.

[14] The Australian Fair Pay and Conditions Standard provides minimum legislative work conditions in respect of pay, hours, annual leave, parental leave and personal or carer’s leave.

[15] Cooney et al, above n13.

[16] I thank K Lee Adams for promoting the useful term, ‘worker-carer’. See K Lee Adams, ‘Indirect Discrimination and the Worker-Carer: It’s Just Not Working’ in Jill Murray (ed), Work, Family and the Law (2005) at 18–44.

[17] See for example, David Kinley & Rachel Chambers, ‘The UN Human Rights Norms for Corporations: The Private Implications of Public International Law’ (forthcoming 2006).

[18] Parker, Open Corporation, above n9.

[19] Jill Murray, Corporate Social Responsibility: An Overview of Principles and Practices: Working Paper No. 34 (2004) at 5.

[20] See Part 3 ‘Regulatory Scholarship’, below.

[21] This is supplemented by the Human Rights and Equal Opportunity Commission Act 1986 (Cth) which establishes the Human Rights and Equal Opportunity Commission (HREOC) as the statutory agency responsible for administering federal anti-discrimination legislation, and the processes for resolving claims made under the four federal substantive anti-discrimination Acts.

[22] Previously called the Affirmative Action (Equal Employment Opportunity for Women) Act 1986, the Act is outlined in Part 4 ‘Current Equality Regulation’, below.

[23] Sara Charlesworth, Philippa Hall & Belinda Probert, Drivers and Contexts of Equal Employment Opportunity and Diversity Action in Australian Organisations (2005) <http://search.informit.com.au.ezproxy.library.usyd.edu.au/documentSummary;dn=974546755684015;res=E-LIBRARY> (23 June 2006) at 19.

[24] Annemarie Devereux, ‘Human Rights by Agreement? A Case Study of the Human Rights and Equal Opportunity Commission’s Use of Conciliation’ (1996) 7 ADRJ 280.

[25] For a summary and analysis of these cases see Belinda Smith & Joellen Riley, ‘Family-friendly Work Practices and the Law’ [2004] SydLawRw 17; (2004) 26 Syd LR 395; Adams, above n16. Similarly, in the United States, anti-discrimination laws have been used to challenge family responsibilities discrimination: Williams, Unbending Gender above n1; Joan Williams & Nancy Segal, ‘Beyond the Maternal Wall: Relief for Family Caregivers who are Discriminated Against on the Job’ (2003) 26 Harv Women’s LJ 77. For analysis of UK law see Joanne Conaghan, ‘The Family-Friendly Workplace in Labour Law Discourse: Some Reflections on London Underground Ltd v Edwards’ in Collins et al, above n10 at 161.

[26] See Part 4B ‘Analysis of Current Equality Laws’, below.

[27] Katherine Stone, From Widgets to Digits: Employment Regulation for the Changing Workplace(2004) at 3.

[28] Rosemary Owens, ‘Decent Work for the Contingent Workforce in the New Economy’ (2002) 15 AJLL 209; Ian Watson, John Buchanan, Iain Campbell & Chris Briggs, Fragmented Futures: New Challenges in Working Life (2003).

[29] Watson et al, above n28 at 136; Australian Bureau of Statistics, ‘Labour Force Participation in Australia’, Australian Labour Market Statistics, Cat no 6105.0 (2006) <http://www.abs.gov.au/AUSSTATS/abs@.nsf/featurearticlesbyTopic/30CB19068CCDE510CA256F81007761A9?OpenDocument> (23 June 2006).

[30] Watson et al, above n28 at 136-138.

[31] Watson et al, above n28 at 136; Australian Bureau of Statistics, ‘Labour Force Participation in Australia’, above n29.

[32] Michael Bittman & Jocelyn Pixley, The Double Life of the Family (1997) at 101–102; Sex Discrimination Unit HREOC, Striking the Balance: Women, Men, Work and Family: Discussion Paper 2005 (2005) at 26 citing Australian Bureau of Statistics ‘How Australians Use Their Time’ (1997) Cat No 4153.0 at 33 on how women spend 5 hours per day in unpaid work, whereas men spend 2.73.

[33] For a more detailed analysis of the way in which time norms structure the ‘ideal’ worker, see Belinda Smith, ‘Time Norms in the Workplace: Their Exclusionary Effect and Potential for Change’ (2002) 11 Colum J Gender & L 271 at Part II.

[34] Williams, Unbending Gender, above n1.

[35] Watson et al, above n28 at 144.

[36] Owens, ‘Decent Work’ above n28; Helen Glezer & Ilene Wolcott, ‘Conflicting Commitments: Working Mothers and Fathers in Australia’, in Linda L Haas, Philip Hwang & Graeme Russell (eds), Organisational Change and Gender Equity: International Perspectives on Fathers and Mothers at the Workplace (2000) at 44.

[37] Barbara Pocock, The Work/Life Collision: What Work is Doing to Australians and What to Do About It (2003); Barry J Fallon, ‘The Balance Between Home Work and Paid Responsibilities: Personal Problem or Corporate Concern?’ (1997) 32 Australian Psychology 1.

[38] Fallon, above n37.

[39] Pocock, Work/Life Collision, above n37; Daniel Petre, Father Time: Making Time for your Children (1998).

[40] Watson et al, above n28 at 146.

[41] Judy Fudge, ‘A New Gender Contract? Work/Life Balance and Working-Time Flexibility’ in Joanne Conaghan & Kerry Rittich (eds), Labour Law, Work, and Family: Critical and Comparative Perspectives (2005) at 261–287.

[42] Studies show that women are much more likely than men to adapt their workforce participation around their caring responsibilities, while for men ‘caring responsibilities do not intrude on their patterns of participation like they do for women’: Watson et al, above n28 at 142–43; Glezer & Wolcott, ‘Conflicting Commitments’ above n36 at 45–47.

[43] Watson et al, above n28 at 142–43.

[44] Petre, above n39.

[45] James T Bond, Ellen Galinsky & Jennifer Swanberg, The 1997 National Study of the Changing Workforce (1997) at 74.

[46] Watson et al, above n28.

[47] Over 20 per cent of employed men in Australia and the US work more than fifty hours per week: Jerry A Jacobs & Kathleen Gerson, ‘Who Are the Overworked Americans?’ (1998) 56 Rev Soc Econ 442, 449.

[48] Nancy Folbre, The Invisible Heart: Economics and Family Values (2001) at 186.

[49] Smith, ‘Time Norms in the Workplace’, above n33; Williams, Unbending Gender, above n1.

[50] Williams & Segal, above n25 at 116.

[51] See references in Williams & Segal, above n25.

[52] See Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law (1990) at 70–74.

[53] K Lee Adams, ‘The Problem of Voluntariness: Parents and the Anti-Discrimination Principle’ [2003] DeakinLawRw 5; (2003) 8 Deakin LR 91; Sara Charlesworth, ‘Managing Work and Family in the “Shadow” of Anti-Discrimination Law’ in Jill Murray (ed), Work, Family and the Law (2005) at 88–126, 104–106 (finding that employees and employees often do not recognise instances of work-family conflict as the result of structural discrimination but the result of individual choice that should not override any business imperative).

[54] See Organisation for Economic Co-operation and Development (OECD), Babies and Bosses—Reconciling Work and Family Life, Volume 1: Australia, Denmark and the Netherlands (2002); Strachan & Burgess, above n7; Ilene Wolcott & Helen Glezer, Work and Family Life: Achieving Integration (1995). For a government summary of family-friendly provisions in Australian workplaces see Commonwealth Department of Family and Community Services & Commonwealth Department of Employment and Workplace Relations, OECD Review of Family-friendly Policies: The Reconciliation of Work and Family Life: Australia's Background Report (2002) at 46–50.

[55] See, for example Rapoport et al, above n1; Williams & Segal, above n25. The Equal Opportunity for Women Agency and HREOC also promote the business case for equality, as discussed in Part 5Bii ‘Enabling – Acquisition of Skills and Knowledge’, below.

[56] Williams & Segal, above n25.

[57] Charlesworth et al, Drivers and Contexts, above n23.

[58] Michelle Arthur & Alison Cook, ‘Taking Stock of Work-Family Initiatives: How Announcements of ‘ “Family-Friendly” Human Resource Decisions Affect Shareholder Value’ (2004) 57 Indus & Lab Rel Rev 599.

[59] Matthew Gray & Jacqueline Tudball, ‘Access to Family-Friendly Work Practices: Differences Within and Between Australian Workplaces’ (2002) 61 Family Matters 39; Sex Discrimination Unit of HREOC, Valuing Parenthood: Options for Paid Maternity Leave (2002). The unit reports that ‘the most recent data on paid leave arrangements found that 38 per cent of female employees reported that they were entitled to some form of paid maternity leave’ and concludes ‘existing paid maternity leave arrangements are limited, haphazard and fall significantly below what could be considered a national system’: at 29 and 25.

[60] Charlesworth et al, Drivers and Contexts, above n23.

[61] Marian Baird, ‘Parental Leave in Australia: The Role of the Industrial Relations System’ in Jill Murray (ed), Work, Family and the Law (2005).

[62] Men have certainly not taken them up: see Michael Bittman, Sonia Hoffmann & Denise Thompson, Men's Uptake of Family-Friendly Employment Provisions: Policy Research Paper No 22 (2004), a comprehensive analysis of the limited use Australian men make of family-friendly work provisions.

[63] Rapoport et al, above n1; see also Graeme Russell & Don Edgar, ‘Organisational Change and Gender Equity: an Australian Case Study’ in Linda L Haas, Philip Hwang & Graeme Russell (eds), Organisational Change and Gender Equity: International Perspectives on Fathers and Mothers at the Workplace (2000) at 197 on how ‘addressing work-family issues has limited value unless there is a strategic business focus.’ They note ‘[it] is argued that strategic solutions involve building the “consideration of family issues into job design, work processes and organisational structures — just as one would consider marketing concerns, say, or engineering input”’.

[64] Conaghan, ‘Family-Friendly Workplace’, above n25 at 168.

[65] Strachan & Burgess, above n7 at 258 (warning that many supposedly family-friendly provisions, such as flexible hours, are not necessarily so when the worker has little control).

[66] See Part 3 ‘ “Regulatory Scholarship” for more discussion of permeable self-regulation. ’

[67] This is a theme running throughout Conaghan & Rittich, above n41, particularly Part II.

[68] See for example Joan C Williams on how the US does not use legislation in the same way as the EU: Joan C Williams, ‘The Interaction of Courts and Legislatures in Creating Family-Responsive Workplaces’ in Ariane Hegewisch et al (eds), Working Time for Working Families: Europe and the United States (2005).

[69] Ariane Hegewisch, ‘Introduction’ in Ariane Hegewisch et al, above n68.

[70] Sex Discrimination Unit of HREOC, A Time to Value: Proposal for a National Paid Maternity Leave Scheme (2002).

[71] Part Time Work Directive 97/81 [1998] OJ L14/9.

[72] Alexandra Heron, ‘Promoting and Protecting Reduced-Hours Work: European Union Law and Part-Time Work’ in Ariane Hegewisch et al, above n68 at 37 quoting the Part Time Work Directive 97/81 [1998] OJ L14/9.

[73] Jill Murray, ‘Work and Care: New Legal Mechanisms for Adaptation’ (2005) 15 Lab Ind 67.

[74] Hegewisch, ‘Introduction’ above n69 at 1.

[75] Joanne Conaghan, ‘Women, Work, and Family: A British Revolution’ in Joanne Conaghan, Michael Fischl & Karl Klare (eds), Labour Law in an Era of Globalization: Transformative Practices and Possibilities (2002) at 53.

[76] Conaghan, above n75 at 59.

[77] See Equal Opportunity Commission (UK) website, The Gender Equality Duty: <http://www.eoc.org.uk/Default.aspx?page=15016> (23 June 2006).

[78] Bettina Cass, ‘Redistribution to Children and to Mothers: A History of Child Endowment and Family Allowances’ in Bettina Cass & Cora V Baldock (eds), Women, Social Welfare and the State in Australia (2nd ed, 1988).

[79] Gillian Whitehouse, ‘From Family Wage to Parental Leave: The Changing Relationship Between Arbitration and the Family’ (2004) 46 J Ind R 400.

[80] See for example Maternity Leave Test Case (1979) 118 CAR 218; Parental Leave Test Case (1990) 36 IR 1; Family Leave Test Case (1994) 57 IR 121; Working Hours Case, Decision PR072002 (23 July 2002). These standards are not unproblematic: see Rosemary Owens, ‘Taking Leave: Work and Family in Australian Law and Policy’ (offering a critique of leave being the only solution offered to women’s worker-carer status) and Anna Chapman ‘The right to flexibility’ (providing a critique of the limited and normative understanding of ‘family’ in the test cases and workplace legislation) in Conaghan & Rittich (eds), Labour Law, above n67.

[81] Family Provisions Test Case, Decision PR082005 (8 August 2005). Other benefits won in the case include a right to request simultaneous parental leave of up to eight weeks and an extension of unpaid parental leave from 12 to 24 months.

[82] State of New South Wales & Ors v Commonwealth of Australia, High Court of Australia, heard: May 4-5, 8-11 2006, Judgment reserved.

[83] For a regulatory analysis of this legislation, see Cooney et al, above n13.

[84] Jill Murray, ‘The AIRC’s Work and Family Test Case: The End of Dynamic Regulatory Change at the Federal Level?’ (2005) 18 AJLL 325.

[85] I adopt this term from Karkkainen, who coined it in response to Lobel in Bradley C Karkkainen, ‘Reply: “New Governance” in Legal Thought and in the World: Some Splitting as Antidote to Overzealous Lumping’ (2004) 89 Minn L Rev 471.

[86] Ayres & Braithwaite, above n9.

[87] Ayres & Braithwaite, above n9 at 3, building on John Braithwaite, To Punish or Persuade: Enforcement of Coal Mine Safety (1985).

[88] Ayres & Braithwaite, above n9 at 3.

[89] Ayres & Braithwaite, above n9 at 3.

[90] Braithwaite, To Punish or Persuade, above n87.

[91] Ayres & Braithwaite, above n9 at 3.

[92] Fisse & Braithwaite, Corporations, above n10 at 136.

[93] Fisse & Braithwaite, Corporations, above n10 at 136.

[94] John Braithwaite ‘Webs of Explanation, Webs of Regulation, Webs of Capacity’, presentation given at Regulation Institutions Network (RegNet), Research School of Social Sciences, Australian National University, Canberra, February 2006: <http://regnet.anu.edu.au/program/past/> (27 Oct 2006).

[95] Ibid.

[96] Valerie Braithwaite, ‘First Steps: Business Reactions to Implementing the Affirmative Action Act’, A Report to the Affirmative Action Agency, September 1992 at 66–73 (on file with author).

[97] Parker, Open Corporation, above n9 at 292; the Hepple Report similarly identifies three interlocking mechanisms: internal scrutiny by the institution, interest group participation and agency assistance and enforcement. See Bob Hepple, Mary Coussey & Tufyal Choudhury, Equality: A New Framework Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation (2000) at 58.

[98] Jill Murray summarises this view: ‘law does not work by automatic fiat, but requires some kind of internalisation to ensure its effectiveness’, above n19.

[99] Parker, Open Corporation, above n9 at 292.101 Parker, Open Corporation, above n9 at 31.

[100] Parker, Open Corporation, above n9 at 292–93.

[102] See below Part 3C ‘New Governance’. I thank Susan Sturm and Elizabeth Emmens of Columbia Law School for prompting this critique.

[103] Parker, Open Corporation, above n9 at 277.

[104] Ibid at 246.

[105] Ibid.

[106] Ibid.

[107] Orly Lobel, ‘The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought’ (2004) 89 Minn L Rev 342.

[108] Karkkainen, ‘New Governance’, above n86 at 472.

[109] Sturm, ‘Second Generation’, above n10.

[110] See for example Dorf & Sabel, ‘Democratic Experimentalism’, above n10.

[111] See, for example Bradley C Karkkainen, ‘Adaptive Ecosystem Management and Regulatory Penalty Defaults: Toward a Bounded Pragmatism’ (2003) 87 Minn L Rev 943.

[112] Jody Freeman, ‘Collaborative Governance in the Administrative State’ (1997) 45 UCLA L Rev 1.

[113] Lobel, ‘Renew Deal’, above n107 at 343.

[114] Ibid.

[115] Sturm, ‘Second Generation’, above n10.

[116] Sturm, ‘Architecture of Inclusion’, above n10 at 268.

[117] Alternatives to unions have been proposed — see Cynthia Estlund, ‘Rebuilding the Law of the Workplace in an Era of Self Regulation’ (2005) 105 Colum L Rev 319 at 397 — but have also been critiqued for assuming capacity rather than offering ‘strategies for enabling these groups’: see Sturm, ‘Architecture of Inclusion’, above n10 at 269.

[118] Jill Murray, ‘Searching for a New Map for Labour Law’ (2003) 16 AJLL 123.

[119] Ron McCallum, ‘The Australian Constitution and the Shaping of our Federal and State Labour Laws’ [2005] DeakinLawRw 24; (2005) 10 Deakin Law Review 460.

[120] Murray, ‘New Map’, above n118.

[121] For a fuller outline and critique of this model, see Belinda Smith, ‘A Regulatory Analysis of theSex Discrimination Act 1984 (Cth): Can it Effect Equality or Only Redress Harm?’ in Christopher Arup, Peter Gahan, John Howe, Richard Johnstone, Richard Mitchell & Anthony O’Donnell (eds), Labour Law and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships (2006) at 105–124; see also Chris Ronalds & Rachel Pepper, Discrimination: Law and Practice (2nd ed, 2004) for a summary of Australian federal equality laws.

[122] EOWW Act s19.

[123] See Equal Opportunity for Women in the Workplace Agency (EOWA) website, Contract Compliance Policy <http://www.eowa.gov.au/Reporting_And_Compliance/Complying_with_the_Act/Sanctions_for_not_Complying/Contract_Compliance_Policy.asp> (23 June 2006).

[124] All states, except South Australia, prohibit direct and indirect discrimination on the basis of carer’s or family responsibilities.

[125] Glenda Strachan, John Burgess & Anne Sullivan, ‘EEO Policy in Australia and Britain’, paper presented at the ‘Reflections and New Directions’ AIRAANZ Conference, Melbourne, 4–7 February 2003; Valerie Braithwaite and John Braithwaite, ‘Early Steps: Regulatory Strategy and Affirmative Action’, Report to the Department of Workplace Relations and Small Business in Relation to the Review of the Affirmative Action Act, May 1998 (on file with author).

[126] Strachan et al, ‘EEO Policy’, above n125 at 10.

[127] SDA s7B(2)

[128] The amount awarded for non-economic loss rarely exceeds $10000: HREOC, Federal Discrimination Law 2005 (2005) at 78.

[129] Hughes (formerly De Jager) v Car Buyers Pty Ltd and Ors [2004] FMCA 526 at 69–71. Contrast the decision of Raphael FM in Font v Paspaley Pearls [2002] FMCA 142 at 158–167.

[130] Parker, Open Corporation, above n9 at 16.

[131] A term used in John Braithwaite, ‘Restorative and Responsive Regulation of OHS’ in Elizabeth Bluff, Richard Johnstone & Neil Gunningham (eds), OHS Regulation for a Changing World of Work (2004) at 194–208.

[132] See Smith & Riley, above n25; John Von Doussa & Craig Lenehan, ‘Barbequed or Burned? Flexibility in Work Arrangements and the Sex Discrimination Act(2004) 10 UNSWLJ 43-50.

[133] Australian cases in which applicants have been successful are Mayer v ANSTO [2003] FMCA 209; Thomson v Orica Australia Pty Ltd [2002] FCA 939; Evans v National Crime Authority [2003] FMCA 375; Song v Ainsworth Game Technology Pty Ltd [2002] FMCA 31; Howe v QANTAS Airways Ltd [2004] FMCA 242; (2004) 188 FLR 1; Tleyji v The TravelSpirit Group Pty Ltd [2005] NSWADT 294. Australian cases in which applicants have failed are State of Victoria v Schou [2004] VSCA 71; Kelly v TPG Internet Pty Ltd [2003] NNTTA 66; (2003) 176 FLR 1; Howe v QANTAS Airways Ltd [2004] FMCA 242, Gardiner v New South Wales WorkCover Authority [2003] NSWADT 184.

[134] Smith & Riley, above n25; Adams, ‘Indirect Discrimination’, above n16.

[135] Charlesworth, above n53 at 88–126.

[136] Strachan et al, ‘EEO Policy’, above n125.

[137] Sara Charlesworth and Belinda Probert, ‘Why Some Organisations Take On Family-Friendly Policies: The Case Of Paid Maternity Leave’, paper presented at the AIRAANZ Conference, Sydney, 2005: <http://airaanz.econ.usyd.edu.au/papers/Charlesworth_Probert.pdf> (20 Sept-ember 2006) at 2–3.

[138] Ibid.

[139] Ibid.

[140] Christine Jolls, ‘Accommodation Mandates’ (2000) 53 Stan L Rev 223; Christine Jolls, ‘Antidiscrimination and Accommodation’ (2001) 115 Harv L Rev 643.

[141] Joanne Conaghan, ‘Equity or Efficiency: International Institutions and the Work-Family Nexus’ in Conaghan & Rittich, above n41.

[142] Adams, ‘Problem of Voluntariness’, above n53.

[143] Sex Discrimination Unit of HREOC, Striking the Balance, above n32.

[144] See the HREOC website, Information for Employers: Good Practice, Good Business — Eliminating Discrimination and Harassment in the Workplace: <http://www.hreoc.gov.au/info_for_employers/index.html#> (23 June 2006).

[145] Sex Discrimination Unit of HREOC, Pregnant and Productive: It's a Right not a Privilege to Work While Pregnant (1999).

[146] HREOC, A Bad Business: Review of Sexual Harassment in Employment Complaints 2002 (2003); HREOC, 20 Years On: The Challenges Continue — Sexual Harassment in the Australian Workplace (2004).

[147] Sex Discrimination Unit of HREOC, Valuing Parenthood, above n59; Sex Discrimination Unit of HREOC, A Time to Value, above n70.

[148] Sex Discrimination Unit of HREOC, Striking the Balance, above n32.

[149] For example Sex Discrimination Unit of HREOC, Valuing Parenthood, above n59; Sex Discrimination Unit of HREOC, Striking the Balance, above n32.

[150] For a description of this consultation process see ‘Methodology’ part A1.2 in Sex Discrimination Unit of HREOC, A Time to Value, above n70.

[151] Australia was one of only two OECD countries that did not have a national paid maternity leave scheme (the other being the US): Sex Discrimination Unit of HREOC, A Time to Value, above n70.

[152] Sex Discrimination Unit of HREOC, Valuing Parenthood, above n59. For a summary see Belinda Smith, ‘A Time to Value: Proposal for a National Paid Maternity Leave Scheme’ (2003) 16 AJLL 226–233.

[153] HREOC, Sexual Harassment: A Code of Practice (2004) HREOC <http://www.hreoc.gov.au/sex_discrimination/code_practice/SH_codeofpractice.pdf> (23 June 2006); Sex Discrimination Unit of HREOC, Pregnant and Productive, above n145; HREOC, Pregnancy Guidelines 2001: <http://www.hreoc.gov.au/sex_discrimination/pregnancy/guidelines.html> (20 September 2006).

[154] Devereux, above n24.

[155] Human Rights and Equal Opportunity Commission, Federal Discrimination Law (2005) which sets out the legislation but is largely a summary of the case law in respect of all the federal discrimination Acts.

[156] EOWA, ‘Research and Resources’: <http://www.eowa.gov.au/Information_Centres/Resource_Centre.asp> (20 September 2006).

[157] EOWA, ‘Consultancy and Workshops’: <http://www.eeo.gov.au/Consultancy_And_Workshops.asp> (20 September 2006).

[158] EOWA website, EOWA Employer of Choice for Women <http://www.eeo.gov.au/EOWA_Employer_Of_Choice_For_Women.asp> (20 September 2006).

[159] See the ‘Workplace: Employment and Workplace Relations Services for Australians’ website, Work and Family Awards <http://www.workplace.gov.au/workplace/Category/SchemesInitiatives/WorkFamily/WorkandFamilyAwards.htm> (23 June 2006). States also offer similar awards.

[160] In contrast, ‘Working Mother’, makes public the five assessment categories: flexibility, childcare, leave for new parents, advancement of women, and a miscellaneous category of work/life benefits, below n175.

[161] Sara Charlesworth, ‘Paying the Price: The Cost of EEO in the Australian Banking Industry’, Paper presented at the ‘Gender — From Costs to Benefits: 6th Interdisciplinary and International Symposium on Gender Research’, Kiel University, Germany 15–17 November 2002 at 7–8.

[162] See SDA ss7A and 14(3A).

[163] Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92.

[164] Although the facts might allow such a claim to be argued as indirect sex discrimination.

[165] This way of framing family-responsibilities claims, and limitations on these claims as a strategy for change, are explored in more detail in Smith & Riley, ‘Family-friendly Work Practices’, above n25.

[166] However, given that all states except South Australia already have a rule of this kind, changing the federal rule would not be enough on its own to have a significant impact on the problem.

[167] See Disability Standards for Education 2005 and the Disability Discrimination Act 1992 (Cth).

[168] Standards Australia Limited website, <http://www.standards.org.au/cat.asp?catid=21> (23 June 2006).

[169] Abstract for Standards Australia Limited, Australian Standard Compliance Programs: AS 3806–2006 (2006): <http://www.saiglobal.com/shop/script/Details.asp?docn=AS073377296XAT> (23 June 2006).

[170] Foreword, Standards Australia Limited, ibid.

[171] Rapoport et al, above n1.

[172] Bailyn, above n8.

[173] Boston College Center for Work & Family, Standards of Excellence in Work-Care Integration Project Excellence Index (2002) <http://www.bc.edu/centers/cwf/standards/overview/index/meta-elements/pdf/ExcellenceIndex10_03_03.pdf> (23 June 2006).

[174] Working Families website, Employer of the Year Awards 2005 <http://www.workingfamilies.org.uk/asp/awards/a_EYA_awards.asp> (23 June 2006).

[175] ‘How We Choose’, Working Mother magazine <http://www.workingmother.com/choosebest.html> (23 June 2006).

[176] Parker, Open Corporation, above n9.

[177] Braithwaite, above n94.

[178] Parker, Open Corporation, above n9. See also Sturm, ‘Second Generation’, above n10; Sturm, ‘Architecture of Inclusion’, above n116.

[179] Parker, Open Corporation, above n9 at 250–251.

[180] The EEONA website describes EEONA as a ‘national peak body representing over 300 member organisations across Australia and New Zealand. The aim of EEONA is to provide members and the community with research and advice on diversity and equality issues. EEONA was established in 2003 and biannually conducts the Australasian Diversity Equality Survey (ADES) which provides cutting edge research on diversity best practice’: <http://www.eeon.com.au/> (23 June 2006).

[181] See the NEEOPA website: <http://www.neeopa.org/> (23 June 2006).

[182] See the EESA website: <http://www.eeo.nsw.gov.au/eeocs/eesa.htm> (23 June 2006).

[183] Disability Standards, such as the ‘Disability Standards for Accessible Public Transport 2002’, are legislative instruments, and non-compliance with such standards is enforced in the same way as non-compliance with the Disability Discrimination Act’s general prohibition on discrimination.

[184] See the Code of Practice being developed by the EOC to supplement the new UK equality duty, available at Equal Opportunity Commission (UK) website, The Gender Equality Duty, above n77.

[185] Note the warnings offered by Susan Sturm about the risk of external auditors being ineffective if audits are conducted rarely or by auditors unfamiliar with the particular industry and its culture: Sturm, ‘Architecture of Inclusion’, above n116, infra n80–82.

[186] Folbre, Invisible Heart, above n48 at 210.